DOJ Opinion No. 029, s. 1999

DOJ OPINION NO. 029 , s. 1999 March 22, 1999 Director Marlito L. Cardenas Environmental Management Bureau Department of Environment and Natural Resources Topaz Building, 99-101 Kamias Quezon City Dear Sir : Subject of this communication is the Environmental Management Bureau's (EMB) request for comment(s) regarding the escrow agreement between EMB and the Development Bank of the Philippines (DBP) to support the implementation of strengthening measures for Environmental Impact Assessment (EIA). Specifically the questions raised are: 1. The initial amount of Php 2,200,000.00 to be delivered to the DBP by EMB will be sourced from EMB savings which were allocated previously for MOE in 1998; 2. The term "Memorandum of Agreement thru Escrow Deposit" was used in the MOA instead of "Trust Agreement"; 3. There is a view that this MOA will result to technical malversation. We regret that this Office is constrained to decline rendition of the opinion/comment requested. First . Any opinion that may be rendered by this Department on the subject matter would necessarily involve an interpretation of the Memorandum of Agreement (MOA) between EMB and the DBP. Accordingly, the Secretary of Justice does not render opinion or give legal advice on issues involving interpretation of contracts (Secretary of Justice Op. No. 10, s. 1979). Second . There is already a view that the MOA will result to technical malversation. As a matter of policy, the Secretary of Justice has consistently refrained from rendering opinion on questions which are justiciable in nature or those which may be the subject of litigation before the courts (Secretary of Justice Op. No. 91, s. 1957; Ops. No. 10, and 92, s. 1971; No. 108, s. 1978 and Op. No. 46, s. 1981). Third . The duty to render legal opinion or give legal advice devolves upon the Office of the Government Corporate Counsel, being " the principal law office of all government-owned and controlled corporations , including the DBP. Accordingly "to enable it to discharge its functions as such, it shall be the duty of all said corporations to refer to it all important legal questions for opinion, advise and determination, all proposed contracts and all important cases for his services" (Section 1, R.A. No. 2327, as amended; Section 1, P.D. 1415; Section 10, Chapter 3, Title III, Book IV of Executive Order No. 292, otherwise known as Administrative Code of 1987). Fourth . The instant request involves re-alignment of funds which eventually falls within the jurisdiction of the Department of Budget and Management (DBM). Pursuant to its mandate, the DBM shall be responsible for the efficient and sound utilization of government funds and revenues to effectively achieve our country's development objectives (Section 2, Chapter I, Title XVII of E.O. No. 292, The Administrative Code of 1987). Fifth . We note that the previous MOA (Trust Agreement) dated December 17, 1997, which was reviewed and found to be in order by the Department of Environment and Natural Resources (DENR) Undersecretary for Legal, Legislative Affairs and Attached Agencies Antonio G.M. La Via pertains essentially to the same EMB Project also covered by the MOA. As an attached agency of the DENR, this Department submits that EMB should first accord the DENR the same opportunity to review and approve the MOA, a matter well within that Department's jurisdiction. This time-honored policy is dictated not only by practical consideration but by a sincere respect for the expertise or, familiarity with, the policies relating to the subject, and the rightful exercise of jurisdiction by a co-equal and coordinate government office (Secretary of Justice Ops. No. 1, 1983; No. 97, s. 1982; No. 123, s. 1980; and No. 149, s. 1976). We therefore suggest that this instant request be addressed to the Office of the Government Corporate Counsel, and the Department of Environment and Natural Resources. Very truly yours, (SGD.) JUSTICE SERAFIN R. CUEVAS Secretary